Conservative Students in First Amendment Case Over Use of Student Fees

(AP Photo/Andrew Harnik)

SAN DIEGO (CN) – California State University’s process of allocating mandatory student fees to fund student group activities is unconstitutional and excludes “unpopular viewpoints,” a federal judge has ruled in the group Students for Life’s challenge over being denied funding to bring an anti-abortion lecturer to CSU San Marcos.

In a 28-page order issued Tuesday, U.S. District Judge James Lorenz found the funding disbursement process by Associated Students Inc. (ASI), a nonprofit auxiliary organization which oversees student body organization programs at the university, is not based on “viewpoint-neutral criteria.”

Lorenz also found CSU San Marcos cannot use the mandatory student fees paid by Students for Life members opposed to two ASI-funded community centers – the Gender Equity Center and LGBTQA Pride Center, which advocate for abortion and LGBTQ rights – “until specific and detailed standards guiding decision-making is adopted.”

The Bill Clinton appointee directed ASI, “at its election,” to modify its guidelines for allocating student funding to implement “viewpoint-neutral regulations” should it want to use the mandatory fees of objecting students.

In an emailed statement to Courthouse News, CSU San Marcos said it is reviewing the decision.

“The court agreed that Associated Students, Inc. (ASI) did not discriminate against Students For Life due to its political or religious views. The university recognizes, however, the court’s conclusion that the process through which ASI funding decisions are reached needs to be improved and better defined. The university is reviewing the decision. We remain committed to fostering an academic climate where diverse ideas and views can be presented and discussed.”

The order is a win for Students for Life’s 2016-2017 CSU San Marcos chapter president Nathan Apodaca, who sued over the denial of his group’s request of $500 to bring anti-abortion speaker Mike Adams, a University of North Carolina-Wilmington professor, to campus.

“The district court has correctly decided that Cal State San Marcos can’t force student citizens to pay for advocacy of the views the university decides are orthodox and effectively exclude competing views. There can be no marketplace of ideas where the government simply funds its favored views,” Alliance Defending Freedom senior counsel Tyson Langhofer, who represents Apodaca, said in an online statement.

Apodaca initially sought funding through the ASI Leadership Fund but was denied based on Apodaca’s incomplete application and eligibility guidelines which expressly prohibit funding for honorariums and speaker fees.

He was then told he could get funding if one of CSU San Marcos’ two ASI fee-funded community centers on campus – the Gender Equity Center and LGBTQA Pride Center – decided to co-sponsor the Students for Life event. When Apodaca inquired about partnering, the centers said they lacked money to co-sponsor the event and that they planned their events 14 months in advance, according to Lorenz’ summary of the case.

Lorenz granted summary judgment to the university on Apodaca’s claim challenging the ASI Leadership Fund denial, noting the funding was denied because it was to be used to pay the speaker and that is prohibited.

But as to the First Amendment challenge to ASI’s funding procedures, Lorenz found because the nonprofit’s funding guidelines “do not contain any express policy prohibiting viewpoint discrimination,” requiring applicants to describe their program including purpose and benefit to students is “an impermissibly viewpoint-based criterion without standards dictating viewpoint-neutral considerations for this information.”

He added: “The consideration of these factors is unconstitutional as the factors naturally relate to the content of the speech and have the effect of excluding unpopular viewpoints. The ‘purpose’ and ‘student benefit’ inquiries allow officials the discretion to pass judgment on the content, merit and potential impact of a program.”

The judge also found the denial of co-sponsorship by the Gender Equity Center and LGBTQA Pride Center was based on “backroom deliberations” with the university’s director of student engagement and inclusion before denying the funding request for budgetary reasons.

“Nothing prevents these officials from encouraging some views while suppressing others through co-sponsorship funding. Thus, the unbridled discretion the centers have in co-sponsorship funding violates plaintiff’s First Amendment rights against compelled speech,” Lorenz wrote.

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